Douchebags and Schiit: How do they get away with it?

When Nancy Friedman, who writes about sweary brand names for Strong Language, discovered a California audio-equipment company called Schiit and a Norwegian travel-bag company called Douchebags, she couldn’t keep the story to herself. She emailed trademark lawyer Anne Gilson LaLonde, who’s written for Strong Language about “scandalous” and “offensive” marks, and asked: WTF? What follows is their online conversation, condensed and edited for clarity. Style note: We’re following the convention in trademark law to use all capital letters for trademarks. When referring to the business itself, we capitalize only the first letter of the name.

The U.S. trademark register is full of shit (or at least a few turds)

The U.S. Patent and Trademark Office has been refusing plenty of applications for marks containing curse words on the dubious ground that they are too commonplace to serve as trademarks. Ever. As I explained in my last post, these applications include SHUT THE FUCK UP legal services, KEEP FUCKING GOING jewelry, and YOU’RE AWESOME KEEP THAT SHIT UP dinnerware and oven mitts.

After that shocking exposé, we’ve earned a sweary tour through those scandalous marks that have made it onto the federal register. Applying to register these before the Supreme Court eliminated the ban in 2019 would have been a complete waste of time and money. But they have now officially penetrated the federal database. I’m not including the multiple asterisked-for-your-protection marks now on the register, though those too wouldn’t have made it through during the heyday of the scandalousness ban.

Let’s start with the shitstorm.

Some sweary trademarks still off limits

This post set out to be a fun romp through the naughty marks in the U.S. federal trademark register. Don’t worry, that post is still forthcoming . . . but in the meantime I’ve learned about a distressing trend that’s stopping lots of sweary marks from attaining federal registration.

Despite having been instructed by the Supreme Court that it can no longer refuse trademark applications on the ground that the contents are “scandalous,” the U.S. Patent and Trademark Office (USPTO) won’t commit wholeheartedly. It’s relying on a shaky rationale to justify rejecting a variety of recently-filed FUCK- and SHIT-formative marks, like GOOD SHIT, APESHIT and YOU FUCKING GOT THIS.

Go ahead and register your scandalous trademark . . . but the Supreme Court will judge your choices

You’re in luck if you sell FUCK ME formalwear, own the NO SHIT diner, or produce HEY ASSHOLE pepper spray. You’ll soon be able to head over to the website of the United States Patent and Trademark Office (USPTO) and register those trademarks. Because the U.S. Supreme Court has just ruled in the Brunetti case that the statutory bars on registering “scandalous” and “immoral” trademarks are unconstitutional.

But you better move quickly . . . A passel of the Justices is not pleased with this outcome. (The moral panic during the oral argument was sort of a red flag.)

Pussyfooting around FUCT

Oral argument at the U.S. Supreme Court yesterday in Iancu v. Brunetti centered on the word FUCT. Well, sort of. As one of the lawyers fussily put it, it centered on “the equivalent of the past participle form of the paradigmatic profane word in our culture.” Right. FUCT.

The case is all about offensive, shocking and profane language. Yet the Justices and the parties’ attorneys pussyfooted around for an hour, steering the argument clear of anything even remotely R-rated. The attitude that there are several words so offensive they cannot be spoken aloud dominated the hearing. It may well dominate the Court’s eventual opinion.

Here’s the backdrop for all of that tiptoeing around those unspeakably naughty words.